Morton v. Olmstead

Filing 6

OPINION AND ORDER: The court GRANTS Demarcus Morton until 03/06/2024, to file an amended complaint; and CAUTIONS Demarcus Morton that, if he does not respond by the deadline, this case will be dismissed under 28 U.S.C. § 1915A without further notice because the current complaint does not state a claim for which relief can be granted. Signed by Judge Jon E DeGuilio on 02/07/2024. (Copy mailed to pro se party) (jdb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DEMARCUS MORTON,
Plaintiff,
v.

CAUSE NO. 3:23-CV-1047-JD-JEM

OLMSTEAD,
Defendant.
OPINION AND ORDER
Demarcus Morton, a prisoner without a lawyer housed at the St. Joseph County
Jail, filed a somewhat vague complaint against Warden Olmstead asserting a variety of
alleged wrongs stemming from a lockdown. ECF 1. “A document filed pro se is to be
liberally construed, and a pro se complaint, however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus,
551 U.S. 89, 94 (2007) (quotation marks and citations omitted). Nevertheless, under 28
U.S.C. § 1915A, the court must review the merits of a prisoner complaint and dismiss it
if the action is frivolous or malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief against a defendant who is immune from such relief.
Morton alleges that the jail was on lockdown from November 14, 2023, through
November 27, 2023, when he filed his complaint. The lockdown was implemented
because an inmate tried to escape and another inmate made threats. He complains
about a variety of conditions during the lockdown and indicates he wishes to bring a
class action lawsuit.

As an initial matter, it would be “plain error to permit this imprisoned litigant
who is unassisted by counsel to represent his fellow inmates in a class action.” Oxendine
v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975); see also Hagan v. Rogers, 570 F.3d 146, 159
(3rd Cir. 2009). “Under Rule 23(a)(4), a class representative must fairly and adequately
protect the interests of the class. A litigant may bring his own claims to federal court
without counsel, but not the claims of others. This is so because the competence of a
layman is clearly too limited to allow him to risk the rights of others.” Fymbo v. State
Farm, 213 F.3d 1320, 1321 (10th Cir. 2000) (citations and quotation marks omitted).
Turning to Morton’s individual allegations, he asserts that, during the lockdown,
he was allowed out of his cell one hour per day. He further alleges that, due to the
lockdown and dirty ventilation system, he became sick. He does not offer any details
regarding the nature of his illness. Elsewhere he mentions that he had a staff infection,
but it is unclear if he attributes this to the dirty ventilation system. He further alleges
that, during the lockdown, the showers were not cleaned. There were worms and bugs
in the shower area. The housing area smelled of feces because the toilets could only be
flushed twice an hour, and staff rarely reset the toilets so they could be flushed more
often. He alleges that the uncleanliness of the facility violates the rights of Muslim
inmates, but he does not allege that he is Muslim. Morton contends that these
conditions amount to punishment.
Because Morton is a pre-trial detainee, his claim must be assessed under the
Fourteenth Amendment. Mulvania v. Sheriff of Rock Island Cnty., 850 F.3d 849, 856 (7th
Cir. 2017). “[T]he Fourteenth Amendment’s Due Process Clause prohibits holding
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pretrial detainees in conditions that ‘amount to punishment.’” Id. (quoting Bell v.
Wolfish, 441 U.S. 520, 535 (1979)). “A pretrial condition can amount to punishment in
two ways: first, if it is ‘imposed for the purpose of punishment,’ or second, if the
condition ‘is not reasonably related to a legitimate goal—if it is arbitrary or
purposeless—a court permissibly may infer that the purpose of the government action
is punishment.’” Mulvania, 850 F.3d at 856 (quoting Bell, 441 U.S. at 538–39).
Here, Morton concedes that the lockdown was instituted in response to security
concerns. It is not arbitrary or purposeless to institute a lockdown following an escape
attempt and threats. This lockdown had lasted less than two weeks when Morton filed
his complaint. Furthermore, Morton does not allege that Warden Olmstead had any
knowledge of the condition of the ventilation system, showers, or toilets in his housing
unit. There is no general respondeat superior liability under 42 U.S.C. § 1983. Burks v.
Raemisch, 555 F.3d 592, 594 (7th Cir. 2009). “[P]ublic employees are responsible for their
own misdeeds but not for anyone else’s.” Id. at 596. To be held liable, a supervisor must
“know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for
fear of what they might see.” Matthews v. City of East St. Louis, 675 F.3d 703, 708 (7th Cir.
2012).
Morton is also upset that the jail permits inmates to make phone calls on their
tablets, but charges a fee for those calls. Inmates who do not have funds do not enjoy
that privilege. While Morton may believe that phone calls on the tablets should be free
of charge, it is not unconstitutional to charge an inmate for this service. Morton does not
indicate that he has been unable to make calls.
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When inmates buy games and movies on their tablets, they are sometimes unable
to enjoy their purchases because the wi-fi will be turned off. He considers this theft.
Morton does not allege that this has happened to him, but even if it has, this does not
implicate constitutional concerns.
Morton is upset that a paralegal that assists him cannot visit him during the
lockdown. He is pursuing a claim elsewhere that he is wrongfully imprisoned, and the
lockdown has made it difficult to litigate that case. A brief lockdown in response to a
security concern does not violate Morton’s rights, even if it prevents him from
communicating with a paralegal who is assisting him with his litigation. Morton has not
described any prejudice to his litigation from his inability to visit with the paralegal. It
is unclear if this individual is an inmate in the facility or someone else, but either way,
the jail can set reasonable limits on when and how communication occurs without
violating the Constitution.
This complaint does not state a claim for which relief can be granted. If Morton
believes he can state a claim based on (and consistent with) the events described in this
complaint, he may file an amended complaint because “[t]he usual standard in civil
cases is to allow defective pleadings to be corrected, especially in early stages, at least
where amendment would not be futile.” Abu-Shawish v. United States, 898 F.3d 726, 738
(7th Cir. 2018). To file an amended complaint, he needs to write this cause number on a
Pro Se 14 (INND Rev. 2/20) Prisoner Complaint form. He needs to write the word
“Amended” on the first page above the title “Prisoner Complaint” and send it to the
court after he properly completes the form.
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For these reasons, the court:
(1) GRANTS Demarcus Morton until March 6, 2024, to file an amended
complaint; and
(2) CAUTIONS Demarcus Morton that, if he does not respond by the deadline,
this case will be dismissed under 28 U.S.C. § 1915A without further notice because the
current complaint does not state a claim for which relief can be granted.
SO ORDERED on February 7, 2024
/s/JON E. DEGUILIO
JUDGE
UNITED STATES DISTRICT COURT

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